The blog of ObiterJ - responsible and sometimes critical comment on legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
'The life of the law has not been logic; it has been experience. The law embodies the story of a nation's development...it cannot be dealt with as if it contained the axioms and corollaries of a book of mathematics' - (Oliver Wendell Holmes - 1841 to 1935). Pro Aequitate Dicere

Friday, 17 March 2017

European Union (Notification of Withdrawal) Act 2017

Update 20th March 2017 - Article 50 will be triggered on 29th March - see this statement. The European Council President stated that draft guidelines for the subsequent negotiations will be issued within 48 hours of the Brexit notification.
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The Act gives the Prime Minister the power to notify the European Council of the United Kingdom's intention to withdraw from the EU. This will commence the 2 year period referred to in Article 50 of the Treaty on European Union. During that time, negotiations will take place with a view to concluding an agreement with the UK, setting out the
arrangements for withdrawal, taking account of the framework for the UK's future relationship with the Union. Article 50 requires the negotiations to be conducted "in the light of the guidelines provided by the European Council." At present, no such guidelines have been published. The 2 year period can be extended as provided by Article 50.

The Bill's progress through Parliament was interesting but, alhough the House of Lords passed two amendments - (see the Bill with the amendments in place) - those amendments were removed after the Bill returned to the House of Commons. The Act is therefore enabling legislation to comply with the majority view in the Supreme Court that legislation was required for the notification.

The Act permits the giving of notice of withdrawal. The logically prior question of whether a decision to leave the EU has actually been taken does not appear on the face of the Act. Article 50(1) requires that the State intending to leave makes a decision in accordance with its constitutional requirements and notification of the decision then follows - Article 50(2). The Miller litigation and also the Parliamentary proceedings focused primarily on the notification. Whether this will have any legal impact is debatable and it may be arguable that the Act necessarily implies that a decision to leave has been taken. Why else would Parliament permit the giving of notice?

The UK government has consistently said that it wishes to give the notice to the EU by the end of March 2017. Once notice is given, the clock will be ticking. The question of whether the notice may be unilaterally withdrawn by the UK has not been answered and the Miller litigation assumed that it could not be. Similarly, it is unclear whether the notice may be given with conditions - e.g. a condition relating to approval by the UK Parliament of the negotiation outcome.

The government accepted a political requirement that Parliament shall have a vote on the outcome of negotiations but, with the rejection of a House of Lords amendment, the Act does not contain any legal requirement requiring such a vote. This is interesting because, as a matter of EU law, the withdrawal agreement requires the consent of the European Parliament - (see Article 50).

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2.
A Member State which decides to withdraw shall notify the European
Council of its intention. In the light of the guidelines provided by the
European Council, the Union shall negotiate and conclude an agreement
with that State, setting out the arrangements for its withdrawal, taking
account of the framework for its future relationship with the Union.
That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be
concluded on behalf of the Union by the Council, acting by a qualified
majority, after obtaining the consent of the European Parliament.

3.
The Treaties shall cease to apply to the State in question from the
date of entry into force of the withdrawal agreement or, failing that,
two years after the notification referred to in paragraph 2, unless the
European Council, in agreement with the Member State concerned,
unanimously decides to extend this period.

4. For the purposes of
paragraphs 2 and 3, the member of the European Council or of the
Council representing the withdrawing Member State shall not participate
in the discussions of the European Council or Council or in decisions
concerning it.